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[2011] ZASCA 54
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Blom and Another v Brown and Others ([2011] 3 All SA 223 (SCA)) [2011] ZASCA 54; 345/10 (31 March 2011)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no : 345/10
NADINE
BLOM
...............................................................................
First
Appellant
ELMARI
BROWN
......................................................................
Second
Appellant
and
CECILIA
GETRUIDA BROWN
...................................................
First
Respondent
GERT
VAN SCHALKWYK
....................................................
Second
Respondent
THE
MASTER OF THE HIGH COURT PRETORIA
.................
Third
Respondent
____________________________________________________________
Neutral
citation:
Blom v Brown
(345/10)
[2011] ZASCA 54
(31 March 2011)
BENCH:
PONNAN, TSHIQI and SERITI JJA
HEARD: 14 MARCH 2011
DELIVERED: 31 MARCH 2011
SUMMARY:
Wills Act 7 of 1953
–
section 4A
– interpretation of.
____________________________________________________________
______________________________________________________________________
ORDER
______________________________________________________________________
On
appeal from
:
North Gauteng High Court
(Pretoria) (Ismail AJ sitting as court of first instance).
The appeal is dismissed with costs.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
PONNAN and SERITI JJA (TSHIQI JA concurring):
[1] The first appellant, Nadine Blom (born Brown) and her sister, the
second appellant, Elmari Brown are the children of Alfred
Samuel
Brown (the deceased). Their parents divorced in 1984. On 27 September
1985 the deceased married the first respondent, Cecilia
Getruida
Brown, out of community of property. No children were born of his
marriage to the first respondent. On 28 March 1995 the
deceased
executed a will (the first will), in terms whereof he left to the
first respondent his entire estate provided that she
survived him by
at least seven days.
[2] On 24 August 2007 prior to travelling to Ulundi in KwaZulu Natal,
where he expected to spend one month on a work related assignment,
the deceased asked to see the first will because, as he put it, he
did not want the first respondent to struggle, should something
happen to him whilst he was in Ulundi. His concern was triggered, it
would seem, by him having been hospitalised for a lung infection
during the course of the preceding month. The first respondent
informed the deceased that he ought not to be concerned as he had
a
valid will, but she could not immediately lay her hands on it when
she searched for it, and was thus unable to put his mind at
ease. The
deceased then asked her to call her nephew, Heinrich Kossatz and the
latter’s girlfriend, Natasha Gerber, who were
living in a
granny flat on their property. In their presence he then dictated a
will which the first respondent wrote out in her
own handwriting.
After first reading it, he signed that will (the second will) in the
presence of the first respondent, Kossatz
and Gerber. Each of the
latter two then signed as witnesses. In terms of the second will he
revoked all of his previous wills and
codicils and once again
bequeathed his entire estate to the first respondent.
[3] On 28 August 2007 and whilst in Ulundi the deceased met his
death. After his death First National Bank lodged the first will
with
the third respondent, the Master of the High Court, Pretoria. The
first respondent consulted with an attorney and pursuant
to that
consultation on 24 September 2007 she lodged the second will with the
Master. As the second will made no provision for
an executor, she
also sought the appointment of Angelique Scheepers, an attorney, as
executor of the deceased’s estate. The
Master took the view
that Ms Scheepers, not having been exempted by the deceased, was
obliged to furnish security for the due discharge
of her duties as
executor. Ms Scheepers was unwilling to do so and in consequence the
Master declined to appoint her.
[4] On 13 March 2008 the Master wrote to the first respondent
enquiring about:
‘
the relationship between the
writer of the handwritten portions of the will and the witnesses to
the signature of the testator and
the beneficiaries under the will.’
She responded fully in writing to the Master that very day. Shortly
thereafter the first respondent called on the office of the
Master in
an endeavour to resolve the appointment of an executor. She was
informed that if she were appointed executor it would
not be
necessary for her to furnish security. As the first respondent was an
unrehabilitated insolvent and thus did not qualify
for appointment,
she made application to court and on 24 April 2009, by order of the
North Gauteng High Court (Pretoria), an order
for her rehabilitation
issued. Armed with the order she once again approached the office of
the Master and was duly appointed executor.
She was also informed
that she was disqualified from benefiting under the will by virtue of
s 4A
of the
Wills Act 7 of 1953
.
[5] The first respondent on the advice of attorney Gert van
Schalkwyk, the second respondent, then launched an
ex part
e
application to the North Gauteng High Court (Pretoria) for an order
in the following terms:
‘
1 Dat verklaar word dat die
oorledene, Alfred Samuel Brown, se eggenote, Cecilia Getruida Brown,
bevoeg is om die voordele te ontvang
wat aan haar bemaak is in die
testament van gesegde oorledene gedateer 24 Augustus 2007.
2 Dat verdere of alternatiewe regshulp aan die Applikant
verleen word.’
That application succeeded before Pretorius AJ.
[6] During May 2009 the appellants caused application proceedings to
be instituted in the North Gauteng High Court against the
first and
second respondents, as also the Master. The relief sought was:
‘
1 Rescinding the order granted
on 14 July 2008 in case no. 28005/2008 and replacing it with the
following:
“
1 Dit word verklaar dat die
Applikant (Cecilia Gertruida Brown) in terme van Artikel 4A(2)(b) van
die Wet op Testamente, Nr 7 van
1953, bevoeg is om ‘n voordeel
uit die testament van Alfred Samuel Brown gedateer 24 Augustus 2007
te ontvang, onderhewig
daaraan dat die waarde van sodanige voordeel
nie ‘n kindsdeel soos in die Wet of Intestate Erfopvolging, Nr
81 van 1987 bedoel,
sal oorskry nie;
2 Dit word verder verklaar dat gemelde Alfred Samuel
Brown se twee afstammelinge, Nadine Blom en Elmari Brown, ingevolge
die bepalings
van die Wet op Intestate Erfopvolging, Nr 81 van 1987,
bevoeg en geregtig is om in gelyke dele die restant van voormelde
Alfred
Samuel Brown se boedel te erf.”
2 In the alternative to paragraph 1 above, rescinding
the order granted on 14 July 2008 in case no. 28005/2008 and granting
leave
to the First and Second Applicants in this application to
oppose the application in case no. 28005/2008 and to deliver their
notice
of intention to oppose within 10 days from date hereof;
3 That the First Respondent be removed from office of
executor in the administration of the deceased estate of Alfred
Samuel Brown,
Master’s reference no. 19545/07, in terms of the
provisions of
Section 54(1)(a)
of the
Administration of Estates Act,
No. 66 of 1965
and that she be ordered to forthwith return her
letters of executorship to the Third Respondent;
4 That the First and Second Respondent be ordered to pay
the costs of this application, jointly and severally, the First
Respondent
in her personal capacity and the Second Respondent
de
bonis propriis
;
5 That further and/or alternative relief be granted.’
[7] In an affidavit filed in support of the relief sought the first
appellant states:
‘
10
It is now a well-known fact that the First Respondent
was involved in the execution of my father’s last will
(Annexure “A”
hereto), because she, as his wife, wrote
out the will for him in her own handwriting. This is more fully
explained by herself in
an affidavit which I shall later refer to
more fully.
11
I am advised that in this regard the provisions of
Section 4A(1)
read with subsection (2)(b) of the
Wills Act, No. 7 of
1953
, are applicable, as the First Respondent, being my late father’s
wife, would have been entitled to inherit from him if he
had died
intestate.
12
In terms of
Section 4A(1)
read with subsection (2)(b) of
the
Wills Act such
person shall be disqualified from receiving any
benefit from that will, but that a court may declare such a person
competent to
receive a benefit which shall not exceed the value of
the share to which that person would have been entitled in terms of
the law
relating to intestate succession.
13
In terms of
Section 1(1)(c)
of the
Intestate Succession
Act, No. 81 of 1987
, where a person dies intestate and is survived by
a spouse as well as a descendant, such spouse shall inherit a child’s
share
(or so much of the intestate estate as does not exceed in value
the amount fixed from time to time by the Minister) and the
descendant
shall inherit the residue.
14
In terms of
Section 1(4)(f)
a child’s portion, in
relation to the intestate estate of a deceased, shall be calculated
by dividing the monetary value
of the estate by a number equal to the
number of children of the deceased, plus one.
15
This means, I respectfully submit, that the First
Respondent would only be entitled to inherit one third (a child’s
portion)
of my father’s nett estate, whilst the Second
Applicant and I would be entitled, in terms of the law relating to
intestate
succession, to the remainder of this estate divided equally
between us.
16
Therefore, at all relevant times hereto, the Second
Applicant and I, as my late father’s only two children, had
(and still
have) a direct and substantial interest in all matters
relating to the inheritance and liquidation of my father’s
deceased
estate.’
[8] Of the second respondent’s involvement in the matter and in
explaining why he has been cited as a respondent, the first
appellant
states:
‘
26
On or about 12 June 2008 I received a telephone call
from the Second Respondent who informed me that because my late
father failed
to appoint an executor, the First Respondent was about
to apply for the appointment of an independent executrix in the
deceased
estate of my father. At no stage was I informed that the
First Respondent had already issued an application for the relief
claimed
in terms of the
ex parte
application referred to above
or that the First Respondent would apply to be appointed as executrix
herself. The
ex parte
application was also never served on me
or the Second Respondent.
27
During or about the beginning of March 2009 I called the
Second Respondent to enquire about the state of affairs with regard
to
my late father’s estate. When I asked him if an executrix
had already been appointed, he informed me that the First Respondent
is the executrix.
28
This came as a shock to me and I immediately telephoned
my attorney of record who then conducted a search in the office of
the Third
Respondent where she noticed a copy of the
ex parte
application and the court order. I refer in this regard to the
confirmatory affidavit of my attorney of record which is attached
hereto as Annexure “F”.
29
On 9 March 2009 my attorney addressed a letter to the
Second Respondent in this regard. A copy thereof is attached hereto
as Annexure
“G”. In this letter my attorney pointed out
that we were not given notice of this application and that the Second
Applicant
and I intend to apply for the necessary relief.
30
On 12 March 2009 the Second Respondent replied in
writing and a copy of his letter is attached hereto as Annexure “H”.
In this letter he alleges that he invited me to collect a copy of the
application in case no. 28005/2008 at his offices and that
he was of
the view that it was not necessary to serve the application on me. I
deny any reference to this application or that he
invited me to
collect a copy thereof at his offices. He only informed me about the
First Respondent’s intention to apply
for the appointment of an
independent executrix in the deceased estate of my father.
31
This new explanation is an afterthought to cover up his
deliberate failure to give me proper notice and to have the said
application
properly served on me. Furthermore, there is no
explanation or supporting affidavit by the Second Respondent in the
ex parte
application
(case no. 28005/2008) that he had a telephonic conversation with me
with regard to the application itself.’
[9] In support of the contention that the first respondent should be
removed as executor, the first appellant stated:
‘
32
I am advised by my attorney of record that according to
the Third Respondent’s file, the First Respondent has already
been
appointed as the executrix in my father’s deceased estate.
A copy of her letters of executorship is attached hereto as Annexure
“J”. The Second Respondent is apparently assisting the
First Respondent in the execution of her duties.
33
Due to the circumstances described above, I have lost
all confidence in the First and Second Respondents. The First
Respondent has,
in collaboration with the Second Respondent, launched
an
ex parte
application
without giving any notice thereof and has already obtained an order
to which she was not entitled to.’
[10] And finally in support of their entitlement to a rescission or
variation of the order granted by Pretorius AJ, the first appellant
states:
‘
35
As I have already pointed out above, the Second
Applicant and I have a direct and substantial interest in matters
relating to the
inheritance and liquidation of my father’s
deceased estate. Notwithstanding this, the First and Second
Respondents erroneously
sought and obtained an order in the absence
of the Second Applicant and myself under circumstances where we are
each entitled to
a child’s share of my father’s deceased
estate as more fully explained above.’
[11] Ismail AJ dismissed the application for rescission with costs
essentially because he was satisfied that the order made by
Pretorius
AJ was correct, but, granted leave to the appellants to appeal to
this court. Neither the second nor the third respondent
take any part
in this appeal.
[12] Two issues arose for decision before the high court. First, the
interpretation of
s 4A
of the Act and second, whether the first
respondent should be removed as the executor of the deceased’s
estate in terms of
s 54(1)(a)
of the
Administration of Estates Act 66
of 1965
. Before us the second was specifically abandoned by counsel
and accordingly warrants no further consideration.
[13] I thus turn to
s 4A.
A useful starting point is
Smith &
another v Clarkson
1925 AD 501
, where Kotze JA (at 503-4) after
an elaborate examination of the common law, summarised the position
as follows:
‘
The rule of the
Roman
Law
, adopted in our
own law, is that no one, in writing out the will of another, can
derive any benefit for himself under it; and it
has been held by this
Court that being appointed executor in a will is a benefit within the
meaning of the rule
Benischowitz
v The Master
(
1921
AD 589)
. The Roman law on the subject is contained in the
Digest
(lib. 48 tit. 10)
and in Code (9.23). But even in the Roman law, as Brunnemann in his
Commentary on this passage of the Code observes
we find instances
mentioned which go to show that the rule was not extended beyond
cases where the reason for the rule did not
apply. Thus if a slave or
a son wrote out a will; in which he was instituted heir or otherwise
benefited, the mere subsequent general
superscription, by way of
confirmation by the testator was sufficient; but, in the case of a
stranger writing out a will, the special
superscription of the
testator, to the effect that he had dictated and acknowledged the
will (
dictavi et
recognovi
) was
necessary in none of these instances was the penalty of the
lex
Cornelia de falsis
,
nor forfeiture of the benefit, incurred
Dig.
(48.10.1.8). So, in
the Code (9.23.1) we find a similar instance put of a son writing out
a will at his father's dictation in his
own favour. It was there held
that as the son, even without the will, would have succeeded to his
father's estate, and was merely
writing at his father's dictation, it
was as if his father had himself written the will. If this reasoning
amounts to anything,
it can only hold on the ground that the
circumstances removed all suspicion of falsity or fraud on the part
of the son.’
[14] The South African Law Commission in its Review of the Law of
Succession, observed in June 1991 (Project 22 para 4.35):
‘
The Commission holds the view
that the rules concerning the disqualification of persons involved in
the execution of the will frustrate
the intention of the testator
while they seldom succeed in preventing fraud. The persons who are
usually available to write out
the will or who sign as witnesses are
precisely the family and friends whom the testator wishes to benefit.
Those who intend forging
a will usually see to it that they are not
disqualified by the rules. The witnesses or a writer whose benefit
appears from the
will is penalised, while persons who may covertly
receive a benefit are not affected. The disqualification has been
described as
“unfair” and “a trap for the unwary”.’
It thus recommended (para 4.38):
‘
The Commission recommends that
the rules concerning the disqualification of persons involved in the
execution of a will be abolished.
This may be done by repealing
sections 5
and
6
of the
Wills Act 7 of 1953
and by substituting for
them a provision that will cause the writer of and witnesses to a
will not to be incapable of inheriting.’
[15]
Sections 5
and
6
, prior to their repeal, provided:
‘
5 A person who attests the
execution of any will or who signs a will in the presence and by
direction of the testator or the person
who is the spouse of such
person at the time of attestation or signing of the will or any
person claiming under such person or
his spouse, shall be incapable
of taking any benefit whatsoever under that will.
6 If any person attests the execution of a will or signs
a will in the presence and by direction of the testator under which
that
person or his spouse is nominated as executor, administrator,
trustee or guardian, such nomination shall be null and void.’
The Law Commission’s recommendations were not accepted by the
Legislature. By s 7 of the Law of Succession Amendment Act
43 of
1992, the Legislature did, however, repeal sections 5 and 6 and in
their stead, inserted s 4A into the Act.
[16] Section 4A, to the extent here relevant, provides:
‘
(1) Any person who attests and
signs a will as a witness, or who signs a will in the presence and by
direction of the testator,
or who writes out the will or any part
thereof in his own handwriting, and the person who is the spouse of
such person at the time
of the execution of the will, shall be
disqualified from receiving any benefit from that will.
(2) Notwithstanding the provisions of subsection (1)
―
(a) a court may declare a person or his spouse referred
to in subsection (1) to be competent to receive a benefit from a will
if
the court is satisfied that that person or his spouse did not
defraud or unduly influence the testator in the execution of the
will;
(b) a person or his spouse who in terms of the law
relating to intestate succession would have been entitled to inherit
from the
testator if that testator has died intestate shall not be
thus disqualified to receive a benefit from that will: Provided that
the value of the benefit which the person concerned or his spouse
receives, shall not exceed the value of the share to which that
person or his spouse would have been entitled in terms of the law
relating to intestate succession.’
[17] It is immediately apparent that the classes of persons
previously disqualified by the now repealed ss 5 and 6 were extended
by s 4A to include someone who writes out a will or any part thereof
in his or her own handwriting. And unlike those repealed sections
which admitted of no qualifications or exemptions, s 4A does. Prior
to the 1992 amendment the general rule was that a person who
had
written out a will on behalf of the testator was disqualified from
taking any benefit under that will. The rationale for disqualifying
such persons was to prevent fraud. But, our courts have always
recognised that at common law exceptions should be made. It was
put
thus
In Re Estate Barrable
1913 CPD 364
at 368:
‘
The object of the stringency
of the law, and of the rules laid down, was the prevention of
falsity, and fraud, and of the exertion
of undue influence over
people in bad health or in feeble state of mind; yet in some cases it
was recognised that all the circumstances
and even the document
itself so entirely disproved fraud that exceptions should be made
from the pains and penalties laid down.’
Using
Barrable
as its lodestar
In Re Estate Maxwell
1949
(4) SA 84
(N) held that a son, who had completed and read over the
will of his mother during her last illness, after she had told him
how
she wished to dispose of her estate, was entitled to the benefits
reserved to him by the will.
[18] Counsel for the appellants submitted:
‘
(a) Subsection (2)(a) applies
to persons who are not family members of the testator and who are
disqualified (and will remain disqualified),
unless a court is
satisfied that the testator was not defrauded or unduly influenced;
(b) Subsection (2)(b) applies to persons who are family
members (i.e. a spouse, descendant, parent or other blood relation).
As
far as this category of persons is concerned, the intention is not
to disqualify them, but to entitle them to inherit a benefit,
the
value of which shall not be more than his/her intestate portion. This
is to ensure that
other
family
members are not prejudiced and are treated equally in terms of the
law relating to intestate succession.
It is therefore respectfully submitted that the legal
principle underlying
Section 4A
of the
Wills Act can
be formulated as
follows:
Only those persons who are
disqualified shall have locus standi to apply for an order in terms
of subsection (2)(a).
In other words,
disqualification is a prerequisite. The question is which persons are
disqualified and which are not?’
[19] In my view that foundational premise, upon which the rest of
counsel’s argument rested, is untenable.
Section 4A(1)
provides
that a person who writes out a will (and the spouse of that person)
shall be disqualified from receiving any benefit from
that will. That
general principle set out in subsection 1 is subject to the
qualification and exceptions set out in subsection
2. To answer the
question posed by counsel:
Section 4A(1)
, which encapsulates the
general rule, operates without more to disqualify a particular class
of persons, namely those who attest,
sign (as a witness or in the
presence of and by the direction of the testator) or write the will,
from benefitting under that will,
unless they are exempted by either
subsections (a) or (b) of
section 4A(2).
Subsection 2(a) empowers a
court to declare any such person who may be disqualified by the
operation of subsection 1 to be competent
to receive a benefit from
the will if it is satisfied that such person (or such person’s
spouse) did not defraud or unduly
influence the testator in the
execution of the will. Unlike subsection 2(a), subsection 2(b)
applies automatically - that is without
the necessity for an order of
court to be obtained. But like subsection 2(a), it too serves to
exempt those who fall within the
ambit of its scope from the
operation of the general rule envisaged in subsection 1. There is, to
my mind, nothing in
s 4A
to suggest that the applicability of
subsection 2(a) is dependent on the inapplicability of subsection
2(b). If it was the intention
of the legislature that a person
contemplated in subsection 2(b) was to be excluded from the ambit of
subsection 2(a) then one
would have expected the section to contain
words such as ‘other than a person referred to in paragraph (b)
of sub-section
1’ to appear in subsection 2(a).
[20] Moreover, I have some difficulty in appreciating why the
legislature would have seen fit to differentiate between a stranger,
on the one hand, and ‘a spouse, descendant, parent or other
blood relation’, on the other, as counsel postulates. Let
us
take two scenarios for illustrative purposes: In the first a
neighbour, A, writes out a will for a testator, T, and in the second
a spouse, B, writes out a will for her husband, the testator, T. If
Counsel’s submission is correct then, notwithstanding
the fact
that both A and B may be able to show that they did not defraud or
unduly influence T in the execution of his will, the
former will be
entitled to all of the benefits reserved to him in terms of T’s
will but the value of B’s benefit will
be limited to what she
would have been entitled to on intestacy - presumably one child’s
share. Why the legislature would
subject two similarly placed
beneficiaries to such differential treatment is not readily apparent
to me.
[21] In addition to the considerations that I have just alluded to,
counsel’s argument, in my view, finds no support in the
plain
language of the section. Subsection 1 refers to ‘any person’
who inter alia ‘writes out the will’
of the testator. And
subsection 2(a) refers in terms to ‘a person or his spouse
referred to in subsection 1’. It is
that person, namely the
person who writes out the will that a court may declare to be
competent to receive a benefit under that
will. In that respect as
Kotze JA made plain in expatiating on the common law,
sections
4A(2)(a)
and (b) do no more than afford to a beneficiary remedies to
reverse the effect of a disqualification. Those remedies, as the
other
authorities to which I have referred illustrate, were available
to such beneficiary under the common law. As it was put by Wessels
J
in
Casserley v Stubbs
1916 TPD 310
at 312
‘
It is a well-known canon of
construction that we cannot infer that a statute intends to alter the
common law. The statute must either
explicitly say that it is the
intention of the legislature to alter the common law, or the
inference from the Ordinance must be
such that we can come to no
other conclusion than that the legislature did have such an
intention.’
In a similar vein Innes CJ stated in
Johannesburg Municipality v
Cohen’s Trustees
1909 TS 811
at 823:
‘
In considering the question of
the extent to which the common law is abrogated by statute, the rule
which as been adopted by the
English courts is thus laid down by
Byles, J., in
Reg. v
Morris
(1
CCR 95): “It is a sound rule to construe a statute in
conformity with the common law rather than against it, except where
and so far as the statute is plainly intended to alter the course of
the common law.” ’
[22] Where a beneficiary acts as a testator’s amanuensis there
is almost always room, I would imagine, for the suspicion
that the
testator may have been improperly influenced by that self-interested
beneficiary. It is perhaps for this reason that the
common law
disqualification in respect of persons who wrote out the will in
their own handwriting, was retained in s 4A(1) of the
Act. What the
section seeks to achieve, consistent with the common law, however, is
to permit a beneficiary, who would otherwise
be disqualified from
inheriting, to satisfy the court that he or she (or his or her
spouse) did not defraud or unduly influence
the testator in the
execution of the will.
[23] In this case, the first respondent gained no unfair advantage
over anybody, and there is no room for any falsity or fraud.
Nothing
can be clearer than the absolute bona fides of the first respondent.
Nowhere on the papers was her bona fides as the writer
of the will
questioned. Nor, given the existence of the deceased’s first
will, which left his entire estate to her, could
it have been. She
was merely acting at his special request as his amanuensis and she
gained absolutely nothing by so doing, nor
did she attempt to gain
anything. In my opinion she ought to receive the benefits reserved to
her by the will.
[24] It follows that the appeal must fail and it is accordingly
dismissed with costs.
_________________
V M PONNAN
JUDGE OF APPEAL
___________________
W SERITI
JUDGE OF APPEAL
APPEARANCES:
For
Appellants: D S Fourie SC
A Trumpie
Instructed
by:
Macintosh
Cross & Farquharson
Pretoria
Honey
Attorneys
Bloemfontein
For
Respondents: J D Maritz SC
Instructed
by:
Weavind &
Weavind Inc
Pretoria
Vermaak &
Dennis Inc
Bloemfontein